#### The Mayor, etc., of New York, Resp’t, *v.*The Eighth Avenue Railroad Company, App’lt.1

*(Court of Appeals, Second Division,*

*Filed January 28, 1890.)*

1. Railroads—Eighth avenue railroad — License fee—Laws 1874, chap. 478.

The legislature did not by Laws 1874, chap. 478, which extended the Eighth avenue horse railroad in New York city and provided that the company should operate its road and the extension “subject only to the provisions of the *General Railroad, Act,”*intend to relieve defendant from, the payment of the license fee which the originators of the road in 1851 agreed to pay the city for the privilege of laying its tracks.

3. Same.

Although at the time the original grant was made the common council had no power to make it, the act of 1854, chap. 140 under which defendant was incorporated, confirmed such grants so that they became valid and binding.

Appeal from a judgment of the general term of the supreme ■court, first department, affirming a judgment entered upon a verdict directed by the court at circuit for $43,062.27.

*John M.*Scribner, for app’lt; *David J.*Dean, for resp’t.

1

 Affirming 6 N Y. State Rep., 631.

Haight, J.

This action was brought to recover the amount of license fees alleged to have become due to the plaintiff for or in respect to passenger cars run by the defendant on its railroad in the city of New York during the years 1875 to 1881 inclusive. The defense was that the legislature had relieved the defendant from any obligation to pay such license fees.

On the 6th day of September, 1851, the plaintiff entered into a *18contract with John Pettigrew and others as parties of the second part in and by which they were given the authority and consent of the common council to lay a double track railroad from a point at the intersection of Chambers street and West Broadway in the city of New York along West Broadway to Canal street; thence along Canal street to Hudson street; thence to Eighth avenue; thence through Eighth avenue to Harlem river.

It was agreed on the part of the parties of the second part that each of the passenger cars to be used on said road should be annually licensed by the mayor, and that they should annually pay for such license such sum as the common council may thereafter determine. It was further agreed on the part of the parties of the second part that they would within ten days after the execution of the agreement organize themselves into an association or company to be called The Eighth Avenue Railroad Company for the purpose of constructing, operating and managing said railroad. Such association having been organized, the defendant’s railroad was in part constructed prior to the passage of chap. 140 of the Laws of 1854. Thereafter, and on the 1st day of January, 1855, the association was incorporated under and by virtue of an act to authorize the formation of railroad corporations and to regulate the same, passed April 2d, 1850, and the act amending the same; and also by virtue of an act of the legislature entitled an act relative to the construction of railroads in cities, passed April 4, 1854, being the act to which allusion has already been made.

The common council having fixed the license fee for two horse cars at fifty dollars per year, and one horse cars at twenty-five dollars, the same was paid by the defendant from the year 1860 down to and including the year 1874. In that year the legislature passed chap. 478, entitled “An act to require The Eighth Avenue Railroad Company to extend its railroad route in the city of New York and to regulate the use and operation of the railroad of said company.” By this act it was in sub< stance provided that the Eighth Avenue Railroad Company should extend its existing railroad tracks from-their then terminus in Eighth avenue through that avenue to its intersection with Macombs Dam road; thence through and along that road to the westerly end of the bridge known as the Macombs Dam Bridge. That it should run its cars over such extended route for the convenience of passengers, and should receive the same fares as at that time charged and no more.

The second section provides as follows: “ When the extension required by this act shall be completed and put in operation said company shall use and maintain and operate its railroad during the term for which said company was incorporated upon and along the several streets and avenues in the city of New York upon and over which its railroad is now in use and operation and upon and over such extension *subject only to the provisions of the general railroad act of this state, with its amendments, which shall be applicable to the railroad and extension hereby*granted, *except as herein provided*

*19The defendant, having complied with the provisions of this act, claims that the general railroad act does not require it to pay any license fee, and that, under the provisions of the section quoted, it is relieved of all obligation to pay the plaintiff the license fee contracted for.

Our first duty, therefore, is to construe and determine the meaning of this provision. If, as is contended, the defendant may operate its road subject only to the provisions of the general railroad act and is relieved of all conditions not appearing therein, it follows that it is relieved also of the condition that it should only propel its cars by horse power, and it could, if it saw fit, propel them by the power of steam. It therefore becomes important to determine if such a result was intended by the legislature.

Assuming that by the expression “ the general railroad act of this state ” chapter 140 of the Laws of 1850 were intended, although there are other railroad acts which are general in their provisions, it includes all amendments thereto, and we understand the word “ amendments,” in this connection, to refer to all acts which in effect amend, modify or limit the provisions of the general act. That all acts *in pari materia*are to be taken together as if they were one law and are to be compared in their construction because they are considered as framed upon one system having one object in view. Potter’s Dwarris on Statutes, 189 ; Sedgwick on the Construction of Statutory and Constitutional Law, 209.

Under the general act a railroad corporation may construct their road across, along or upon any street which the route of its road shall intersect or touch, upon obtaining the consent of the common council of the city. *Schaper*v. *The Brooklyn & Long Island Cable Railway*Company, 4 N. Y. State Rep., 860.

It may take and convey persons and property on its road by the power or force of steam. Chapter 140 of the Laws of 1854 does not, in express terms, amend the provisions of the general act, but it does provide that the common councils of the several cities shall not hereafter permit to be constructed in either of the streets or avenues of the city a railroad for the transportation of passengers, which commences and ends in the city, without the consent and authority of a majority in interest of the owners of property upon the streets in which the railroad is to be constructed being first had and obtained. So that after the passage of this act a railroad company, organized under the provisions of the general act, where its road commences and terminates in the city, as does the defendant’s road, no longer has the right to construct its road along or upon the streets of the city without first complying with the conditions imposed by the provisions of the latter act. It is an act *in pari materia*with the general act, and, in effect, amends, modifies and qualifies its provisions, and is, therefore, one of the acts subject to the provisions of which the defendant holds and operates its road under chap. 478 of the Laws of 1874.

Again, it will be observed that the act of 1854 is general in its provisions, applying to all of the cities in the state. It is one of the acts under which the defendant was incorporated. It is the *20act by which it acquired its grant, or right, to construct and operate its road, as we shall subsequently show. The act of 1874 does not amend or repeal any of the provisions of this act. It consequently appears to us that they are left standing with their full force and effect. Under the act of 1854 the common council of the city where the the consent of a majority of the property owners has been obtained is given the power to grant authority ' to construct and establish a railroad upon or in its street or streets upon such terms, *conditions*and stipulations in relation thereto as the common council may see fit to prescribe. Thus it may prescribe that the company shall propel its cars with horses, instead of steam. It may regulate the manner in which the rails shall be laid and the streets kept in repair. It may also prescribe, as a condition of the grant, that the company pay a license fee for the cars that it runs upon its road. *The Mayor, etc., of the City of New York*v. *The Broadway & Seventh Avenue Railroad Co.,*97 N. Y., 275.

Conditions of this character were prescribed in the grant that was made, which now vests in the defendant, which it accepted, recognized and performed up to the time of the passage of the act of 1874.

It is urged, however, that these conditions were void for the reason that the common council had no power to make the grant in question. At the time the grant was made this was undoubtedly true. *Davis*v. *Mayor, etc, of the City of New York,*14 N. Y., 506 ; *Milhau*v. *Sharp,*27 id., 611.

But the act of 1854, to which we have already referred, ratified and confirmed the grants, licenses, resolutions and contracts made by the common council so that thereafter they became good, valid and binding. It is under the provisions of this act that the grant to construct and operate a railroad in the streets named was made valid. It is the act under which the defendant was incorcoporated and took title to its property and franchises. The same words which confirmed the grant confirmed the contract, and if one is made valid the other must be also.

Upon the argument of this appeal questions were discussed involving the validity of the act of 1874 under the constitution of the United States and of the state of New York, which questions we do not deem it necessary to here consider, for under the view which we take of the act of 1874 there is nothing which limits, repeals or modifies the act of 1854 and that the defendant holds and operates its road subject to the provisions of the general act as modified and qualified by the provisions of that act.

Nor do we think that the fact that the common council had passed an ordinance imposing a penalty for a failure to procure a certificate for a license operates to prevent the plaintiff from maintaining its action to recover the license fee. The right to maintain such action was affirmed in the case of *The Mayor, etc., v. The Broadway & Seventh Avenue Railroad Company, supra.*

Nor do we think that case distinguishable from the one under consideration on account of the provision in that case that the company was bound to pay the license fee by virtue of the spec*21ial provisions of its charter independent of the ordinance of the common council, for in this case under the provisions of the contract which became valid under the act of the legislature to which we have referred it was expressly agreed that the company should pay the license fee thereafter to be fixed by the council.

It consequently follows that the judgment should be affirmed, with costs.

All concur; Vann, J., in result.